Speaking Freely

Official blog of the American Civil Liberties Union (ACLU) of Pennsylvania

Friday, October 28, 2011

Let the courts decide?

PA State Senators are avoiding their obligation to be the first line of defense for the Pennsylvania Constitution.

On Wednesday, the State Senate passed Senate Bill 1, the taxpayer-funded private school vouchers bill, by a slim majority, 27-22. Its opponents have a litany of concerns with the bill and the harm it could cause to education in Pennsylvania. One of their most serious concerns is that the bill would almost certainly violate the Constitution of the Commonwealth of Pennsylvania. But unfortunately, Senators supporting the bill have decided to punt the issue to judges. They plan to enact SB 1 without considering whether it contradicts the Commonwealth’s constitution.

SB 1 would create a program through which the state would provide vouchers to students at Pennsylvania’s lowest performing schools. They could use these vouchers to pay to attend a private school. According to Senator Anthony Williams, one of the bill’s co-sponsors, and the Senate Republicans’ fiscal analysis, no more than about 10% of students at these schools would likely participate and receive vouchers. The money for the vouchers would come directly out of the budgets of the school districts that students were leaving.

The constitutional problems with the bill arise from the provisions about where vouchers can be spent. Families that receive vouchers can use them to pay to attend any private school—including a religious private school. SB 1 does not require that the voucher funds do not help pay for religious instruction.

Pennsylvania’s constitution could not be much clearer that the legislature is not allowed to pass a law like this one. A legal analysis by ten state and national organizations, including the American Civil Liberties Union of Pennsylvania, the Education Law Center, and the Pennsylvania State Education Association, concluded that SB 1 would violate no fewer than four separate provisions of the state constitution. For example, Article III, Section 15 commands, “No money raised for the support of the public schools shall be appropriated to or used for the support of any sectarian school”. Despite the constitutional command, SB 1 takes money used for public schools and uses it to pay for vouchers to attend sectarian schools. There is little room for doubt: SB 1, if it became law, would be unconstitutional.

So why are legislators spending their time trying to pass it? Senator Jim Ferlo of Pittsburgh asked that question at the Senate Education Committee’s meeting on October 24. Senator Williams’ responded that the legislature should pass the bill and let the courts decide whether it is constitutional or not. After all, the Supreme Court of Pennsylvania is the final authority for the meaning of the Pennsylvania Constitution.

But the senator left out a critical point: the Supreme Court is not the only authority responsible for protecting Pennsylvania’s constitution.

Every legislator, before taking office, swore, “I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth". This oath is written into the Pennsylvania Constitution, and it is the same oath that judges take. It means that legislators have a duty to try not to pass laws that will violate the constitution and undermine the legal foundations of the Commonwealth.

Yes, the justices of the Supreme Court of Pennsylvania are the last line of defense for the state constitution. But the legislators are the first.

Wednesday, October 19, 2011

Greetings from Harrisburg! House Bill 934 with its voter ID mandate will effectively disenfranchise hundreds of thousands of Pennsylvanians. Wendy Bookler talks about her 93-year-old mother, Bea, who has voted in every presidential election since 1940. If HB 934 is enacted, Bea will lose the vote.

Wendy is also on the board of the SeniorLAW Center, one of our allies in opposing HB 934.

Wednesday, October 12, 2011

Tea Party, ACLU agree: E-Verify is a national ID system

Tea Party activists say they believe in limited government. The Bill of Rights is all about limiting the power of government. The ACLU defends the people's rights guaranteed under the Bill of Rights and elsewhere in the constitution. Thus, one would assume that Tea Party and the ACLU would agree quite often. If only it were that easy.

Nevertheless, a few weeks ago a coalition of more than two dozen Tea Party, conservative, and libertarian groups dropped a proverbial bombshell into the politics of immigration. In a letter to Congress and in an ad that ran in Politico, the coalition came out against the federal bill from Rep. Lamar Smith (R-TX) that would mandate the use of the E-Verify national identity system on all employers. In the letter and the ad, the coalition said:

Requiring citizens to secure permission from the Department of Homeland Security to enjoy the fruits of their labor is an unacceptable violation of our civil liberties...

E-Verify:-Creates a de facto national I.D. system - even for citizens;-Violates individual civil liberties such as the right to work & free speech;- Mandates a costly job-killing regulatory burden that cripples small business;-Requires employers to become enforcement agents of the federal government;-Encourages identity theft of citizens.

E-Verify is an online database program administered by the federal government. The databases used in E-Verify are from the Social Security Administration and from the Department of Homeland Security and contain more than 500 million personal data records. If you have a Social Security number, your information is there, on the internet. Under current law, employers can sign up to participate but are not mandated to do so.

The conservative groups agree with what the ACLU has been saying. E-Verify poses major privacy problems and creates the infrastructure of a national identity system. Today employers have access to the data. Who is going to have access to the data in the future?

The conservative coalition's letter and ad had to have been a punch in the gut to Rep. Daryl Metcalfe, who once said that he "was a Tea Partier before it was cool," and other members of the Pennsylvania General Assembly who are trying to mandate E-Verify on all employers. On Tuesday, the House State Government Committee, of which Metcalfe is the chair, is scheduled to take up a slate of anti-immigrant bills, including House Bill 858 to mandate E-Verify.